Defamation law: How to safely publish the news

Nov 3, 2014

By Diane Davis
Programs and Outreach Coordinator | NNA

SAN ANTONIO, TX—Attorney Laura Lee Prather, a partner in the Litigation Practice Group of Haynes and Boone LLP in Austin, TX, offered 10 rules for newspaper professionals to follow to avoid lawsuits. Prather presented during a concurrent session on Oct. 3, 2014, at the NNA Annual Convention and Trade Show.

Prather said that claims can be made during several stages, including newsgathering, story content and online content. Her 10 rules include:

1. Re-publication of a libelous statement is libel—check your sources. Prather explained that libel claims pertain to the printed word, while slander claims can result from broadcast stories. The single-publication rule refers to the day something was originally published, whether online or otherwise.

2. Give the person the opportunity to respond. The two types of defamation are libel per se, which assumes damages, and libel per quod, when damages must be proven.

3. Identify how the person is a public figure and why the article is of public concern. Whether the subject is a public or private figure is important, and Prather emphasized that children are not public figures. She noted that judges, doctors and lawyers tend to sue more often than people in other occupations.

4. Do the legwork and attribute official sources. Always get consent to photograph/film, and always cite the source, Prather said. Libel can also be by implication or omission, so present a fair story.

5. Watch your headlines. The proximity of a banner headline to a photograph in a different story can create libelous results.

6. Confirm company names. Distinguish between the company and a parent company. The federal Community Decency Act provides protection for ISPs/hosts unless they know the post—including a comment—is false. A resource Prather recommended is, the website of the Reporters Committee for Freedom of the Press.

7. Don’t use someone’s image to promote your work without permission. Is the image necessary to the story? Respect privacy, and be aware of false light.

8. Avoid vague terms in making promises, and never promise a result, such as when a story will be published. In some states, the statute of limitations can be as long as four years.

9. Treat online content and social media posts with the same care as you would treat the print publication. Copyright pertains to photos published on social media, as well as music, news articles, drama and architecture.

10. Get permission from copyright holders to republish works. To be valid, copyright transfers and work-for-hire agreements must be written and signed. Prather emphasized that there is no copyright to facts—only how those facts are expressed.

Prather advised respect for private property and caution when using telephoto lenses, hidden cameras and drones/UAVs. She said that two-party consent for wiretapping is required in 12 states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, Pennsylvania and Washington, and that nearly half the states have hidden-camera use laws.

In response to a question, Prather advised running corrections in the same place that the original story appeared because that is the most likely place to help mitigate any damage. Corrections should not be used as filler, she said.